SZUVB v Minister for Immigration

[2015] FCCA 1031

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUVB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1031

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001

Migration Act 1958 (Cth), s.425

Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
NAHIv Minister for Immigration [2004] FCAFC 10

Re JRL; Ex parte CJL (1986) 161 CLR 342

Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
SZLOA v Minister for Immigration & Anor [2008] FMCA 881

Applicant: SZUVB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2081 of 2014

Judgment of: Judge Driver

Hearing date: 23 April 2015

Delivered at: Sydney

Delivered on: 23 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr S Speirs of Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2081 of 2014

SZUVB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 30 June 2014.  The Tribunal affirmed a decision of a delegate for the Minister not to grant the applicant a protection visa.  The applicant is from Fujian Province in China and had made claims of religious persecution.  Background facts relating to the applicant’s claims to protection and the decision of the Tribunal on them are set out in written submissions filed in Court by leave today on behalf of the Minister. 

2. The applicant, a citizen of China, arrived in Australia in May 2008 on a student visa. On 15 March 2011, he became an unlawful non-citizen.[1]

   [1] Decision Record (DR), [3], Court Book (CB), 79.

3. On 2 April 2013, the applicant applied for a protection visa. On 26 July 2013, the Minister’s delegate refused the grant of the visa.[2]

   [2] DR [2], CB, 79.

4. On 21 August 2013, the applicant applied to the Tribunal for review of the delegate's decision. On 22 November 2013 the applicant attended a hearing before the Tribunal.[3]

   [3] DR, [3], CB 79.

5. On 30 June 2014 the Tribunal affirmed the delegate's decision. On 25 July 2014, the applicant applied for judicial review of the Tribunal's decision.

Applicant's claims

1. The applicant claims to fear harm in China on the basis of his Christianity, specifically, being a member of an unregistered "Local Church". In support of his application for protection the applicant claimed that:

   a)his grandfather introduced him to the Local Church at a “young age”.  He attended church with his grandfather two or three times a week where they would “sing, pray and listen to stories”.[4]

   b)when he was 13 or 14 years old, police came to the Local Church which was being held at a neighbour's house, and arrested and detained “several people”. Neither he nor his grandfather were arrested;[5]

   c)the applicant's mother became an adherent of the Local Church. Church activities were held at their home on Thursdays;[6]

   d)in 2005 or 2006 his mother was arrested by the police and detained for two days because of her “Church activities”;[7]

   e)his mother did not want to see the applicant or his brother persecuted and sent them overseas;[8]

   f)the applicant continued to attend a Local Church in Australia two or three times a week and was baptised in 2012;[9] and

   g)if he were to return to China he would proselytise, which would bring him to the adverse attention of the authorities.[10]

   [4] DR, [17], CB 81.

   [5] DR, [21], CB 81.

   [6] DR, [22], CB 81.

   [7] DR, [22], CB 81.

   [8] DR, [26], CB 82.

   [9] DR, [31], CB 83.

   [10] DR, [34], CB 83.

Tribunal findings

1. The Tribunal found that the applicant's fear of harm was not well-founded, nor was there a real risk that he would face harm if he returned to China. In reaching this finding, the Tribunal made the following findings and comments:

   a)the Tribunal had considerable doubts about the credibility of the applicant.  In particular, the applicant's inconsistent evidence about when he went to live with his grandfather.[11]  The Tribunal held that the applicant should have a "better recall of events which he claimed to be of such significance in his life", and thus concluded that the applicant appeared to be changing his story in response to its questions;[12]

   b)the Tribunal observed that by the applicant's own account, the applicant's mother was of little interest to the authorities and suffered no adverse consequences since 2005 or 2006;[13]

   c)the Tribunal noted that the applicant's primary concerns are the religious activities of his grandfather and mother. The Tribunal found it highly improbable that any adverse consequences “would flow” to the applicant out of his mother's arrest.  The Tribunal noted that the applicant did not leave China for two or three years after his mother's arrest and “[did] not accept that his mother's arrest and detention was the reason he left China to come to Australia”;[14]

   d)the Tribunal considered independent country information, which indicated that Christians who attend Local Churches in the Fujian province face a low risk of being harmed for their religious beliefs.[15]  Accordingly, the Tribunal found that the applicant could return to Fujian and continue his involvement in the Local Church without facing a real chance of persecution, because the country information indicated that “that official religious policy is applied relatively liberally in the province”;[16]

   e)the Tribunal, noting that the applicant had acknowledged that he had not proselytised in Australia, was not satisfied that the applicant would actively encourage others to join the Local Church if he returned to China.[17]

   [11] see DR at [19] and [21].

   [12] DR, [27], CB 82.

   [13] DR, [28], CB 82.

   [14] DR, [29], CB 83.

   [15] DR, [43], CB 85.

   [16] DR, [43], CB 85.

   [17] DR, [45], CB 85.

The present proceedings

1. These proceedings began with a show cause application filed on 25 July 2014.  The grounds in that application are reproduced at [10] of the Minister’s written submissions:

   During the interview, I can feel discriminatory and prejudice from Tribunal officer

   During the interview, she had done some gestures told me to stop talking. She can't deprive me of the right to speak.

2. The applicant has taken up the opportunity to file what is, in effect, an amended application, although presented in the form of an affidavit with an attachment.  The attachment sets out supplementary grounds.  These are reproduced at [11] of the Minister’s submissions:

   1.RRT was biased during the hearing, the country information that it referenced did not conform to the reality. According to country information, RRT claimed that Christians who attend non-registered churches in China, particularly in Fujian province face a low risk of being harmed or arrested because of their religious beliefs. However, it did not necessarily mean that nothing had occurred. Moreover, there are many differences between non-registered church and registered church. People are not allowed to spread gospel to children in the registered church which was against the Lord. RRT officer accepted that I am Christian. After I return to China, I will attend non-registered churches for sure, so the possibility that I would be persecuted by the government is very high. RRT ignored this possibility which is unfair.

   2. The Tribunal did not examine the risk of the persecution I will face if return to China. Because of my religion believes as an underground Christian, the Chinese authorities in China wishes to harm me. I evidenced that when I was very young my grandfather took me to a Christian church and after arriving in Australia I had been to a church regularly. This is credible evidence that I follows underground Christianity in China but ignored by the Tribunal.

3. The applicant confirmed from the bar table today that he relies upon those supplementary grounds.

4. I have before me as evidence the Court book filed on 10 September 2014. 

5. In the first ground the applicant asserts bias.  The allegation of bias is based upon the Tribunal’s use of country information which did not support the well-foundedness of the applicant’s fear of persecution.  The country information in issue is set out in footnotes at pages 84 and 85 of the court book.  There is no basis to the allegation of bias.  It is for the Tribunal to determine the country information on which it chooses to rely.  It will be a rare case indeed in which the selection of country information gives rise to an apprehension of pre-judgement or bias.  I agree with the Minister’s written submissions on that question. 

6. In order to establish that a decision has been affected by apprehended bias, the court must be satisfied that a fair-minded lay observer might apprehend that the Tribunal was not impartial.[18]  Whether or not there is apprehended bias is determined by the Court objectively.[19]  Apprehended bias must be “firmly established”.[20]  It is not sufficient to merely show that the Tribunal has formed a preliminary view of the appellant’s credit.[21]

   [18] Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27] -[28].

   [19] Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [68] per McHugh J.

   [20] Re JRL; Ex parte CJL(1986) 161 CLR 342 at 352 per Mason J, at 359–360 per Wilson J and at 371–372 per Dawson J.

   [21] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [72].

7. Most of the applicant's submissions on the ground of apprehended bias were directed to the issue of the country information relied upon by the Tribunal.  In NAHIv Minister for Immigration[22] the Court held at [11]:

   By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on “country information“. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the “country information” is one for the Tribunal, not for the Court. [emphasis added]

   [22] [2004] FCAFC 10.

8. It was appropriate for the Tribunal to consider the country information, and that the findings made on the basis of that information were reasonable and open.

9. In the second ground the applicant asserts that the Tribunal did not examine the risk of persecution he faces should he return to China.  As elaborated upon in the applicant’s oral submissions, this does not rise above a dispute over the merits of the Tribunal’s reasoning process.  The applicant remains concerned that he will face a real risk of harm in Fujian Province in China as an underground Christian.  Although the Tribunal accepted that he is a Christian and would adhere to the unregistered church in China, the Tribunal did not accept that he had a profile which would bring him to the adverse attention of the Chinese authorities.  In particular, the Tribunal did not accept the applicant’s claim that he would proselytise in China.  The Tribunal’s reasoning was based on the fact that the applicant had not done so in Australia. 

10. I see no arguable case of legal error in the Tribunal’s approach.  To the extent that the grounds in the original application have any continuing relevance, I agree with and adopt the Minister’s written submissions. 

11. By the second sentence of the applicant's pleaded ground the applicant asserts that the Tribunal member “deprive me of the right to speak”. This grounds appears to be an attempt to invoke the protection of s.425 of the Migration Act 1958 (Cth), by claiming that the Tribunal failed to fulfil the dictates of the invitation to the hearing. However, this ground cannot be made out for at least two reasons: first, because it is unparticularised; and secondly, because the Tribunal decision reflects a thorough consideration of the dispositive issues and the discussion between the applicant and Tribunal member relating to the applicant's claims.[23]  Additionally, it is to be observed that there is no evidence to support the applicant's claim that he was “deprive[d] … of the right to speak”.  To repeat the dicta of Raphael FM (as he was then) in SZLOA v Minister for Immigration and Anor,[24] in addressing a similar claim:

    … one would say that in order for the applicant to establish that the length of the hearing and the nature of the questioning was such as to negative any ability of the [applicant] properly to put his case, he would have to produce, at the very least, the tape-recording and preferably a transcript of the hearing. The applicant has not done this and has not requested an adjournment to do so. I am unable to assist the applicant in relation to this ground.

    [23] see in particular DR [24]-[25].

    [24] [2008] FMCA 881.

12. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

13. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister seeks the scale amount prescribed at the time the show cause application was filed.  The applicant did not wish to be heard on costs. 

14. In the course of making an order for costs, the applicant indicated that he might require time to pay and expressed some concern about the risk that he will be removed from Australia.  Those are not reasons for the Court to refrain from making a costs order.

15. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  12 May 2015